If
you find from the evidence that at the time the alleged
crime was committed, the defendant had substantially reduced mental
capacity, whether
caused by mental illness, mental defect, intoxication, or any other
cause, you
must consider what effect, if any, this diminished capacity had on the
defendant's ability to form any of the specific mental states that are
essential elements of murder and voluntary manslaughter.

Thus,
if you find that the defendant's mental capacity was diminished
to the extent that you have a reasonable doubt whether he did, maturely
and
meaningfully, premeditate, deliberate, and reflect upon the gravity of
his
contemplated act, or form an intent to kill, you cannot find him guilty
of a
willful, deliberate and premeditated murder of the first degree.

Also,
if you find that the defendant's mental capacity was diminished
to the extent that you have a reasonable doubt whether he was able to
form the
mental states constituting either express or implied malice
aforethought, you
cannot find him guilty of murder of either the first or second degree.

In
determining if defendant had diminished mental capacity,
if there was evidence that defendant's act was the product of an
irresistible impulse,
you must consider whether or not such irresistible impulse, if any, was
due to
mental illness, mental disease or mental defect so as to render
defendant
incapable of forming the mental states essential to murder or voluntary
manslaughter .

From Defense
Attorney Douglas Schmidt's Opening Statement

Good
people, fine people, with fine backgrounds, simply
don't kill people in cold blood, it just doesn't happen...The part that
perhaps went
unrecognized,
and certainly went unrecognized until it was too late, was the fact
that Daniel
White was suffering from a mental illness. He had been suffering from a
mental
illness since the time of early manhood, and it's a disease like any
other
disease, perhaps not easily diagnosable as a broken leg or arm, but far
more
devastating to the person, and the disease that Daniel White was
suffering from
is called "depression," sometimes referred to as "manic depression,"
and sometimes simply as "depression." It's not a feeling that
perhaps you and I have experienced wherein one is depressed over
certain turns
of events or disheartened by something that has happened, but this is a
chemical change that occurs within the man's body, and it's diagnosable
and
substantiated as a disease.

The
doctors, of course, will corroborate in great detail,
and doctors will be called here to testify in regards to the symptoms
of
depression, and basically they entail radical changes to the diet,
compulsive difficulty
in sleeping, low energy, withdrawal from duties, withdrawal from job,
and
withdrawal from others, and sometimes bizarre behavior, and these
depressive
episodes occurred with some frequency in Daniel White's life, but went
unrecognized,
and as I have indicated, he was never treated for this disease, and
there are
several reasons why it went unrecognized. Most of those reasons have to
do with
his character and personality.

Q
What did you notice about the changes in him [beginning around March of
1978]?

A
Well, he became frustrated with the job quite early. He was having
difficulty
at that time adjusting to the political process, as to ups and downs,
give and
take, and he became moody and with­drawn, and started to come much
less, started
to cancel meetings, just basically depressed a lot.

Q
Did you notice anything about his health habits or diet that was
irregular?

A
Yes, he would ask me to buy him candy a lot during lunch breaks and
board
meetings and at recess, and he ate a lot of candy, and he would eat
doughnuts,
junk food, sugar drinks.

Q
Was that unusual?

A
It was very unusual.

When
I first met him he said he
never wanted
anything but milk, never drank, didn't smoke or drink coffee, and it
was very
unusual.

He worked out a lot, was physically
fit. He always ate very healthy foods.

Q
Did he seem to, in your opinion, gain weight after you had known him?

A
Yes, it was very slight at first. I didn't really notice, but I started
to
notice it in his face, which became puffy, and his pants would fit
tighter....

Q
Did you ever notice the time during the late summer meetings that he
did go to,
that went well or poorly?

A
There was one meeting in which he came off very, very well. . .
.Afterwards he
spoke to the-to this crowd of merchants, and this was a potential,
antagonistic
situation, and after the meeting I was euphoric.

I thought he won them
over. They
were giving him a standing ovation.

We got in to my car,
and he looked
so-he looked pale, and he looked exhausted, as if he had been running
20 miles.

He was-didn't want to talk about it,
didn't feel well, and he wanted me to go to a doughnut store, buy him
doughnuts.

He consumed about five doughnuts in
a matter of seconds, and he looked very, very withdrawn.

Q
You mentioned that, or I asked if you saw some change in him after he
had been
on the Board of Supervisors?

A
Yes. When he first started out, like I say, he came down for lunch, and
Dan was
always, always into health. He was always in tip-top shape. Every time
him and
I would see each other, the first thing we had asked each other is,
"How
you feeling? How you do­ing? You working out?" And Dan would run,
and I'd
run and, basica1ly all the different sports events. He loved sports and
I loved
sports.

And I
noticed when he first started out he'd
come to the firehouse and he'd bring his own sandwich and had milk and
everything, you know, and-or we'd have a hamburger, but he'd always
have his
milk.

And later on he'd come down and he'd
get a Coke, and that's not like Dan at all to get a Coke. Or he'd eat
candy or
something like that. That's not like him either. Then I would see him
on the
clip­pings on the-on the TV or in the newspaper and he'd just look
like he gained
weight. His face looked all puffy to me. It looked like he was changing.

I'd talk to
him and he'd sound the same, but to
me-he just didn't look the same to me. It looked like he was going
downhill. I
mean, he just wasn't the same physically and not the same guy to me.

Q In other
words, the factor in there, the overall question of Mr. White's
personality,
mental status, is the fact that he has depression perhaps as many as a
half a
dozen per year?

A Is the fact
that he's had depression, perhaps as many as half a dozen per year,
each
lasting four to five days often without any apparent trigger.

During these
spells he'd become quite withdrawn, quite lethargic, He would retreat
to his
room. Wouldn't come to the door. Wouldn't answer the phone. Would call
in sick.
Wouldn't even sleep with his wife; would sleep on the couch outside.

And during these
periods he found that he could not cope with people. He would avoid
them
because he'd find that when he was depressed, any confrontations would
cause
him to kind of become argumentative. He left people. He didn't know
what he was
thinking, which was out of character for him. Ordinarily, he was always
polite.

There are two
other features of these spells of particular interest. These depressive
spells.

One, though he
has had suicidal thoughts during these periods of despondency, he has
never
felt remotely homicidal, though he felt resentful and quarrelsome.

Second, whenever
he felt things were not going right, he would abandon his usual program
of
exercise and good nutrition and start gorging himself on junk foods: Twinkies,
Coca Cola.

[Note: this reference to Twinkies inspires the description
"twinkie defense."]

Mr. White has
always been something of an athlete priding himself of being physically
fit.
But when something would go wrong, he'd hit the high sugar stuff. He'd
hit the
chocolate, and the more he con­sumed, the worse he'd feel, and he'd
respond to
his ever going depres­sion by consuming ever more junk food. The
more junk food
he con­sumed, the worse he'd feel. The worse he'd feel, the more
he'd gorge
himself, and so on, in a vicious circle.

Finally, after
several days, he'd pull himself together, maybe start jogging a bit,
feel
better, stop eating this food, feel better yet, and then get back to
his old
diet and his old personality, which is generally

pretty
congenial.

Characteristic
of Mr. White, he has never sought out treatment for these episodes.

...

Q Doctor, you
have mentioned this ingestion of sugar and sweets and that sort of
thing. There
are certain theories with regard to sugar and sweets and the ingestion
thereof,
and I'd like to just touch on that briefly with the Jury.

Does that have
any significance, or could it possibly have any significance?

A Well, I think,
Mr. Schmidt, there are probably three factors that are significant.

First, there is
a substantial body of evidence that in susceptible individuals large
quantities
of what we call junk food, high sugar content food with lots of
preservatives,
can precipitate anti-social and even violent behavior.

There have been
some studies, for example, where they have taken so-called career
criminals and
taken them off all their junk food and put them on milk and meat and
potatoes,
and their criminal records immediately evaporate.

There have been
a lot of studies in which individuals who are susceptible to these
noxious
stimuli, when given these noxious stimuli will undergo complete change
and
engage in behavior which they nor­mally would not. That's No.1.

No.2, I think
that all the pressures impinging on Mr. White for months, increasing in
intensity in the days prior to the shooting, made it very difficult for
him to
think very much about what he was about. I think he was operating
largely in an
unthinking emotional way. Physically exhausted. Feeling tremendous
pressure to
begin to do the right thing and, yet rapidly running out of the energy
and the
emo­tional needs available to do it.

I think he began
to focus irrationally on being reappointed as the savior. That's the
solution.
If only I am reappointed, then all these pressures will be off of me.
And I
think, realistically, were he reap­pointed, he'd be right back
where he was
before.

But at least at
the time that the Mayor and Supervisor Milk had been shot, he had come
to see
reappointment as his last salvation, and I think when the Mayor said,
"No,
you are not going to be reappointed,” pulled the rug out from under him.

The third factor
I think is that by the day of the shooting all of these pressures on
him seemed
to reside within, or be personified by Mayor Moscone and then
Supervisor Milk.
They seemed to repre­sent in the flesh all the things that were
impinging upon.

And I would
suspect, that if it were not for that, and if it were not for all the
tremendous pressures on him the weeks prior to the shooting, and
perhaps if it
were not for the ingestion of this aggravating factor, this junk food,
with all
three factors, did not impinge upon him at the same time, I would
suspect that
these homicides would not have taken place.